THAKUR DIN Vs. SITA RAM

JUDGEMENT

(1.) This is a plaintiffs appeal-arising out of a suit in which the plaintiffs sought an injunction restraining the defendants Sita Ram and Ram Chait from interfering with their possession of a certain house. The house had been sold by Sita Ram in execution of a decree for money which he had obtained against Paltu, the father of the appellants. Sita Ram having obtained this decree sought in execution thereof to sell the house, which has been held by the learned Civil Judge in the lower Appellate Court to be ancestral property. Paltu preferred an objection to the sale of the house under Section 60(1)(c), Civil P.C. He alleged that he was an agriculturist and that therefore the ancestral house was not liable to sale in execution of the decree against him. This objection was ultimately dismissed for default and the, house was sold by the decree-holder. In these circumstances the appellants, the sons of Paltu, have brought the suit out of which this appeal arises to restrain the defendants from interfering with their possession of the house. The learned Munaif decreed the suit. The learned Civil Judge in the lower Appellate Court recalled the order of the learned Munsif and dismissed the suit. He held that the decree obtained against the father and executed by the decree-holder and the dismissal of the father's objection under Section 60(1)(c), Civil P.C., were binding upon the appellants.

(2.) As to whether in such circumstances a sale can be challenged by the minor sons of the judgment-debtor is a question upon, which there has been in the past a divergence of judicial opinion in this Court. In Aidal Singh V/s. Khazan Singh a Bench of this Court held that "the provisions of Section 60, Civil P.C., are imperative and prohibit the attachment and sale of the property of an agriculturist in execution of a decree," that "an order dismissing an objection of the judgment- debtor that his property could to be attached and sold as he was an agriculturist cannot operate as res judicata in a subsequent suit by the sons of the judgment- debtor impugning the sale and attachment on the ground that the property was ancestral," and further that the principle that "in a joint Hindu family, a father, when he sues or is sued, represents his sons in the litigation, is not applicable to such a case." This decision is directly in point and supports the plaintiffs contention. In Sabha Ram V/s. Kishen Singh another Bench of this Court took the directly opposite view of the law. In that case it was held that: Where a house belonging to a joint Hindu family consisting of a father and his minor sons passed out of their hands by sale in execution of a decree against the father, who was an agriculturist, there having been no intervention on his part at the time when the house was attached, the father could not challenge the validity of the sale at a litter stage by a separate action, nor did the sons possess a higher right than the father, because the debt was binding upon them and they were bound by the consequences of the execution proceedings in which the lather must be deemed to have represented the entire family.

(3.) In our judgment the law upon the question raised has been clearly expounded in the Privy Council decision in Lingangowda V/s. Basangowda . In the course of their judgment in that case the Board observed (page 453): In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these oases therefore the Court looks to Expln. 6 of Section 11, Civil P.C., to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majora, with the assent of the majors.